In Davill v Pull, the claimant and the defendants each had a right of way over a track to access their respective adjoining plots. The claimant wished to redevelop its plot of land for housing. The defendants asserted that the track could not be used for access to the proposed development, as this would involve an excess use of the claimant's easement.

The right of way was granted in a conveyance of the plot together with other land. Having described the plot as "garden ground" for the purpose of identifying the land to be sold, the conveyance went on to grant "the right for the Purchaser his heirs and assigns to use for all reasonable and usual purposes such part of the ... roadway ... as [is] necessary to give access to and from the hereditaments hereby conveyed".

The defendants accepted that the claimant could lawfully build houses on the plot. They also accepted that neither the vehicles involved in the construction of the houses, nor those of the occupants once they were built, would interfere with the defendants' use of the track.

However, the defendants argued that the right of way was circumscribed by the fact that the benefited land was "garden land" at the date of the grant. The defendants' case was based on the fact that the grant of the right to use the track was not expressed as a right exercisable "at all times and for all purposes", but "for all reasonable and usual purposes". The defendant argued that that must mean "reasonable and usual" for a country track leading to an allotment.

Case law showed that, had there been an unqualified express grant of a right of way, then even though the benefited land was used as garden land at the time of the grant, the right would be exercisable for all lawful purposes for which the land could be used from time to time (including housing). The question, therefore, was whether the language of the grant, construed against the background circumstances known to the original parties, imported a limitation on it.

The claimant argued that the only effect of the phrase "reasonable and usual" was to exclude offensive or obnoxious purposes. If all gardening activities on the plot were to come to an end, there would on the defendants' case be no continuing right to access it. The easement would therefore be tantamount to a restrictive covenant not to use the plot as anything other than a garden. However, the vendor had not seen fit to impose such a covenant in the conveyance. The description in the conveyance of the benefited land being "garden ground" was there solely for the purpose of identifying the benefited land; it did not limit the purposes for which the right of way could be used.

The Court of Appeal found in favour of the claimant. There was nothing to suggest that the original parties to the conveyance intended that the easement over the track could only ever be used in connection with the use of the benefited plot as garden land.

A use "for all reasonable and usual purposes" imposed a qualification on an "all purposes" use. However, had it been the parties' intention to limit use of the right of way to the type of use to which the benefited plot was then being put, it would have been easy to achieve this by drafting to that effect. There was no question that the use of the plot for the building and occupation of houses in accordance with a planning permission was a "reasonable and usual" use. On that basis, the right of way over the track could lawfully be used for the purpose of building such houses and their occupation when built.

Things to consider

The scope of an easement which has been expressly granted will always be determined by the interpretation of that grant. The court emphasised that, where a grant is for "all purposes", its use will not be limited by the original use of the benefited land at the date of grant and will permit use for any purpose to which the benefited land may from time to time be put. The position is different where an easement is claimed by prescription or implied grant, when a change in the use of the benefited land may be relevant.